Withdrawing from an off-plan apartment purchase: when the trust fund penalty applies

Quick answer: there is no single legal percentage for a penalty when you pull out of a pre-sale. It depends on which of three situations you are in: the project did not meet its disbursement conditions, you withdrew or fell behind on payments, or the builder breached the contract. Each has different rules, and mixing them up is the most expensive way to get it wrong.

If you have already deposited money into a trust (encargo fiduciario) and you received a notice of a higher installment, a change in your mortgage, or you simply changed your mind, the first step is to understand what you signed. This text guides you using public rules; the contract you signed and, if the dispute is already open, a lawyer, define your specific case.

What you actually signed: a trust mandate, not a deed

The pre-sale trust mandate (encargo fiduciario) does not make you the owner and does not transfer title to the trust company; according to the Superintendencia Financiera, that happens in a commercial trust (fiducia mercantil), which is a different figure. The trust company manages your funds according to the contract, keeps them separate, and does not guarantee that the building will be completed: it has an obligation of means and is liable for slight negligence.

By that name alone, it is also not a promise of sale. A membership form from Alianza Fiduciaria, for example, expressly states that the pre-sale adhesion is not a promise and that the withdrawal penalty is agreed with the builder, not the trust company, and is not part of the texts approved by the Superfinanciera. Use it as an illustration, not as a universal model.

The purchase of a home in a real estate project is indeed covered by Law 1480 of 2011 (Consumer Statute), as the SIC reiterated in its statement of December 30, 2025.

Path 1: the project does not meet the disbursement conditions

In pre-sales, the trust company holds contributions until the agreed conditions are met, known as the break-even point. According to the Superfinanciera, the contract defines that point and the allocation of yields or losses, and before letting the builder use the money, the trust company must verify technical, financial, and legal conditions.

The real estate trust guide announced by the Superfinanciera in 2016 describes the general scheme this way: if the disbursement conditions are not met, the money is returned to the buyers with yields; if they are met, it is disbursed to the builder. Note: contributions are usually invested in a fund and can gain or lose value, depending on the contract.

Here is the conceptual trap: the project not reaching break-even is not the same as “I changed my mind.” These are different hypotheses and should not be read as one.

Path 2: you withdraw or fall behind on payments

If the exit is your decision, the penalty comes from the penalty clause you accepted, not from a trust company rule. In the procedure published by Acción Fiduciaria, the buyer files the request with the construction company; the developer instructs the trust company and indicates whether the penalty clause applies, and the disbursement does not go to third parties not linked to the mandate. That trust company publishes a disbursement process of five business days with documents in order; this is not a national legal deadline, so confirm yours in your contract and with your entity.

Since SIC External Circular 004 of 2024, in force from February 12, 2025, whoever sells housing must inform you, from the pre-contractual stage, clearly and verifiably, of the real amount you will assume if you withdraw. They must also give you the price in pesos, and you are only obliged to pay the amount you were told when you expressed your will (separation, purchase option, or trust).

And the famous 20%? There is no general legal cap of 10% or 20% in the official sources reviewed. What exists is one case: in case file 24-378660 (Minutes 4165 of April 24, 2026, SIC bulletin of July 9, 2026), the SIC declared abusive and null a clause that allowed deducting 20% of the total value of the unit, ended that relationship, and ordered the amount paid in that process to be returned, indexed. It is the outcome of a single file, not a rate.

If your reason is that the subsidy or the mortgage changed, look first at how the family compensation fund subsidy works; this article does not calculate how much subsidy you would lose; confirm that with the fund or the entity that assigned it to you.

Path 3: the builder breached the contract

Here the logic reverses. Article 38 of Law 1480 prohibits, in adhesion contracts, clauses that allow the provider to unilaterally modify the contract or evade its obligations. Article 42 declares abusive clauses ineffective by operation of law, and numeral 8 of Article 43 includes those that prevent the consumer from terminating when it is appropriate to raise the provider's breach as an exception. Article 37 requires that the adhesion conditions be disclosed sufficiently, in advance, expressly, and in Spanish; otherwise, they are considered not written.

Circular 004 reinforces this: unilateral modifications are prohibited, and an extension due to a cause not attributable to the builder must be explained and supported. My honest reading: not every delay frees you from the penalty, but an extension without explanation or support is a red flag worth documenting.

• Keep the original advertising (private area, reference price in pesos, location).
• Compare the promised dates and specifications with those they now communicate to you.
• Request in writing the reason for any change.

The promise of sale is another document

The promise comes later and has its own requirements. Article 1611 of the Civil Code requires writing, a promised contract that is not ineffective, a term or condition fixing the time, and a determination such that only the transfer of title or legal formalities remain. Circular 004 requires the promise to state the date of signing the deed and the delivery date; the SIC statement also recommends including the time and notary office. For details on earnest money (arras) and clauses, review the guide to the promise of sale, arras, and notary.

Does the five-day withdrawal right apply?

Not automatically. Article 47 of Law 1480 understands it as agreed in sales with financing from the producer or provider, timeshares, or non-traditional or distance methods, with a maximum of five business days. It is not a right in every off-plan purchase.

What to request in writing and where to file a complaint

Before signing any withdrawal, request the settlement in writing. Include the mandate number, the amount deposited, the reason, and an account in the name of the mandate holder. Be careful: do not deposit into the seller's personal accounts or sign a “withdrawal” sent via WhatsApp without a copy of the mandate.

If they deduct a penalty you were never explained, first complain to the construction company and the trust company. Then you can file a complaint with the Consumer Protection Division of the SIC or, separately, go to judicial action before a civil judge or the SIC's Jurisdictional Affairs Division. According to the SIC statement of December 30, 2025, between January 2024 and October 2025 the agency received 2,818 complaints and 3,255 lawsuits for alleged violations in housing construction, sanctioned 38 construction companies, and its Jurisdictional Division issued 302 rulings in favor of consumers. Those figures correspond to that window, not to today.

An alternative to exiting: if you can still transfer your spot, look at how to assign trust rights. And if you have decided to look at housing already on offer, you can see the listings in the housing section.

Remember: the rules guide you, but the signed contract, and a lawyer if the dispute is already open, define your case.

Frequently asked questions

❓ Is the pre-sale trust mandate already a promise of sale?

Not by itself. The promise is another document with the requirements of Article 1611 of the Civil Code, and Circular 004 of 2024 requires it to state the deed date and the delivery date. Check what it is called and what your document says (verify with the official source).

❓ If I change my mind, does the trust company return everything I deposited?

Not always. The refund and the penalty depend on the clause you were informed of and on whether the project met or did not meet the disbursement conditions. Changing your mind and the project failing are different situations, and there is no typical percentage that applies to every case (verify with the official source).

❓ Does the trust company or the builder charge the penalty?

The trust company disburses according to the contract and the developer's instruction; the penalty arises from what was agreed with the builder or seller. At Acción Fiduciaria, for example, the developer indicates whether the penalty clause applies. Other entities may operate differently, so read your contract (verify with the official source).

❓ If the builder changes the date or the finishes, can I leave without a penalty?

A clause cannot hold you when it is appropriate to raise the seller's breach as an exception, and unilateral modification is prohibited in adhesion contracts. Even so, an extension due to an external cause must be explained and supported, and not every delay automatically frees you from the penalty (verify with the official source).

❓ Do I have five days to withdraw, as in other purchases?

That withdrawal right is not automatic in every off-plan purchase. Article 47 of Law 1480 reserves it for sales with financing from the provider, timeshares, or non-traditional or distance methods, with a maximum of five business days (verify with the official source).

❓ What happens if the project never reaches the break-even point?

If the agreed disbursement conditions are not met, the Superfinanciera's guide describes the return to buyers with the yields under the contract. Yields or losses and deadlines are in your contract, and this is not the same as withdrawing by your own choice (verify with the official source).

❓ Where do I complain if they deduct a penalty I was not explained?

Request the settlement in writing from the construction company and the trust company. If there is an abusive clause or missing information, you can file a complaint with the SIC's Consumer Protection and, separately, go to judicial action before a civil judge or the Jurisdictional Division (verify with the official source).